Whether the issue arises in Minnesota or Wisconsin, a judge faces a difficult decision whether to award attorneys fees. On September 10, 2014, the Court of Appeals for the State of Wisconsin upheld a trial judge's decision to deny a wife’s request that her ex-husband pay towards her attorneys fees. Here are the facts and the rationale:

Sharon and Richard were married in 1990 and separated in 2009. After Sharon filed for divorce, Richard filed for chapter 11 bankruptcy.A reorganization plan for the repayment of Richard’s debts was confirmed during the pendency of the divorce. Richard was a farmer prior to his marriage to Sharon and he continued to farm throughout their marriage.In addition to farming, Richard owns and receives income from rental properties.During the marriage, Sharon was primarily a homemaker.After Sharon and Richard separated, Sharon began work as a janitor. The circuit court found Richard’s annual income to be $91,820 and Sharon’s to be $46,183.

There were several disputed issues, including property division, debt assignment, and calculation of Richard’s income for support purposes. In the divorce Sharon asked that the Circuit Court order that Richard pay towards her attorneys fees.

Sharon contends that the circuit court improperly exercised its discretion in failing to require Richard to contribute $25,000 toward her attorney fees.Sharon suggests that the court failed to take into account that her attorney fees were substantially increased due to the fact that her divorce attorneys had to navigate Sharon’s interests in light of the bankruptcy that Richard unilaterally decided to file, and also that the court did not factor into its decision her low earning capacity.

A court may order either party to pay a reasonable amount for the other party’s attorney fees after considering the financial resources of the parties.Wis. Stat. § 767.241(1)(a).In determining whether to award attorney fees, a court should consider the need of the party seeking fees, the other party’s ability to pay, and the reasonableness of the fees.Kastelic, 119 Wis. 2d at 290.

The Court of Appeals found the one problem with Sharon’s arguments was that the circuit court explicitly addressed the only factors that she now asserts the court overlooked.The court found that the parties each had “incurred substantial attorney fees” that “are attributable to [Richard’s] bankruptcy and the divorce action.”However, the circuit court found that “neither party has the capacity to immediately pay the attorney fees incurred” nor will Richard have that ability to do so in the foreseeable future.As to the reasonableness of the fees, the circuit court further found that while “each party pursued their own self-interest” during the course of the bankruptcy and divorce, neither party “improperly increased attorney fees incurred by the other.”This last finding goes directly to what the Court of Appeals understood to be the core argument Sharon made, to the effect that Richard needlessly generated legal costs for Sharon in the divorce through the bankruptcy proceedings.As such the Court of Appeals upheld the Circuit Court’s denial of Sharon’s request for attorney fees.